When a police officer cannot offer testimony

In recent years there have been a number of reported incidents of alleged police misconduct, a few of which have even led to criminal convictions of the former officer. Even without a criminal conviction, there have been instances where an officer’s conduct may make it impossible for the officer to testify in other cases. This can result in the officer losing his job, as illustrated by an unreported opinion this month from Maryland’s intermediate appellate court in a case called Carlton Brittingham, Jr. v. Cambridge Police Department.

The opinion indicates that Brittingham was a Cambridge City police officer who was charged for an alleged off-duty rape. He was acquitted of the charges, but reportedly gave conflicting testimony at his criminal trial from statements made earlier during the police investigation. He was charged with perjuring himself in his criminal trial, but was also found not guilty of perjury.

Thereafter, the State’s Attorney advised the Police Department that given Brittingham’s conflicting testimony, they would not call him as a witness in any future criminal case. The Department then advised Brittingham that he was being terminated as a police officer because he could not fulfill his duties, which may include testifying in Court. His administrative appeal was denied by the City Commissioners, and he then attempted to sue the police department alleging that he was improperly terminated without a hearing in violation of the Law Enforcement Officer’s Bill of Rights.

The lawsuit claimed a violation of a provision of the Public Safety Article providing that where a law enforcement agency kept a list to disclose under the criminal law impeachment information regarding officers who had committed or allegedly committed acts bearing upon their honesty or integrity, officers on the list could not be fired or disciplined solely because their name was on the list. The trial judge dismissed the suit, and the appellate court affirmed the dismissal.

The Court found that the police here had not placed Brittingham such a list, and he was not punished because of this conduct but was properly terminated because he could not fulfill his police duties, which may include testifying in Court. Such a failure to maintain qualifications as a police officer, the Court found, warranted his dismissal.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.